Extended Collective Licensing
I was going to tackle the second third of the consultation today but it turns out this has largely been done for me already. To save me the effort of re-writing something already better written (and to save you the pain of reading it) I'll just direct you, well, directly to the bemuso blog site where you can read his* analysis.
There's 4 sections to it so it may take a while.
Go ahead, jump there now, I'll wait here.

Back? Excellent.
Now we don't agree entirely in our analysis, but only in context of who might be calling for this and benefitting from it. It's altogether likely that Rob (I hope he doesn't mind me calling him that) has sources of knowledge that I don't, but I wonder what makes him suggest that the people pushing for these changes (we agree that it's not the consumer) are "Google and the free content lobby". It feels to me that the people most likely to benefit from these measures are the currently incumbent collecting societies themselves.
So having concluded that the second section of this consultation serves only to bring confusion and complexity to both consumers and creators I shall move on to the final section of this document.

Codes of Conduct for Collecting Societies
This bit gets me down a touch because it shows such a lamentable failure to a) look at what's happened elsewhere and b) stand up for the public against vested interests.
Shorly after pointing out that this is a billion pound operation it says "However, the Hargreaves Review noted that collecting societies tend to be monopoly suppliers in the sectors in which they operate, and that there was evidence that practice could be improved in some areas. Hargreaves argued that greater protection was required both for members of collecting societies, and for their licensees."
It then describes feedback that raised issues "in relation to lack of transparency, administrative costs, and negotiation practices around licences and tariffs" - so pretty much everything they're supposed to be doing then?
Despite this we're going to extend these collecting societies? Even though there are plenty of other options that already exist out there in the market and aren't requiring government intervention (see the 3rd bemuso blog).
Clearly codes of conduct are required in order to make sure these collecting societies operate properly.
Well, no, actually that's not clear at all, but that's not how governments think.
But codes of conduct do a good impression of making it look like something is being done; that is definitely how governments think.
"Collecting societies and some rights holders favoured a purely voluntary model based on principles developed by a working group of the British Copyright Council. Considerable effort has gone into developing these proposals, and collecting societies argued that they would deliver the intended benefits of the policy. However, licensees overwhelmingly sought a statutory basis for codes of conduct, supported by the potential for penalties to ensure compliance and counteract the monopoly position of collecting societies. Their fear was that without a credible enforcement process, the codes would not have any real impact. This was seen as particularly important if collecting societies’ powers were extended (e.g. via authorisation to operate ECL schemes) to allow them to licence on behalf of non-members."
Well no shit. The vested interests want a voluntary code of conduct. Ask yourself how well that works for advertising and the press?
Fortunately there are some people involved who are at least nearly as cynical as me so we have "Government will therefore legislate to allow the introduction, through Regulations, of a backstop power to
enable the application of a statutory code of conduct. This power would be used in the event of failure by a
collecting society to implement or adhere to a voluntary code which encompasses the minimum standards."
I wonder if that will make it through to the final draft?

I still don't understand who, apart from the licensing agencies, is benefitting from either the ECL or the codes of conduct. This really feels like a classic case of "when all you have is a hammer, everything looks like a nail."
And I find that very depressing.

Saturday, 7 July 2012

I'm going to try and do a bit of an experiment in making my music available for wider use. You can already download the songs on a pay what you want basis, but that's not what I'm thinking about.My plan is to make all the original multitracks for those songs available.I have three challenges to this though:

1) the sheer amount of time it's going to take me to upload 55Gb of 88.2 24bit files.

2) Choosing where it should be uploaded to. I'm thinking a torrent site but with the pirate bay now being blocked in the UK (and not being particularly techy and not knowing how to get around that) the obvious target has gone.

3) Getting word out that it's there. Back to the old obscurity problem.

Now obviously no-one can help me on the first one, but any advice or suggestions on the second two would be greatly welcomed.

Skipping straight past some questionable statements in the exec summary (which does at least try and bring a measure of balance to the debate) we'll look at the separate chunks in this document.

The consultation covers three areas: Orphan Works, Extended Collective Licensing and Codes of Conduct for Collecting Societies. Having read through this a couple of times I'll address each section in turn. Corrections and criticisms are more than welcome in the comments.

Orphan Works:

For those unfamiliar with the terminology, these are works where the copyright owner is not known or cannot be located. This issue with orphan works is that these works are effectively locked up and no-one can make use of them. Remembering that the purpose of copyright is to promote culture and knowledge it makes sense to try and open up this considerably bank of material for wider use.

So far so good.

Basically the governments proposal is that orphan works can be licensed if a "diligent search" has unearthed no owners and been confirmed by an independent authorising body. At the moment the definition of diligent and the nature of the authorising body have not yet been revealed, so we'll skip over that.

The issue I foresee is around this paragraph: "This permission should come at an appropriate price – a market rate, to the extent that one can be established". The problem here is that the current major rights holders do not have a good record of setting reasonable market rates for licenses. There is a litter of failed innovative start-ups that have tried to engage the major rights-holders to license content but they've been squashed by completely unreasonable and, more importantly, unrealistic license demands.

Looking at two of the four key principles (i'm ignoring the others because I don't see a problem with them) there appears to be a bit of confusion as to what is being attempted here:

"• Minimising market distortion between orphan and non-orphan works, by ensuring the owners of rights in
orphan works are treated as similarly as possible to comparable ‘non-orphan’ rights holders.
• Maximising the benefits to economic growth of the scheme."

The problem here is that the second of these is most easily achieved by dumping the first. The way that these works can provide most economic benefit is by saying that all orphan works are public domain. That way they can be copied, deconstructed, built up, remixed, re-developed and generally transformed into any thing that provides value to a potential customer. Trying to minimise the distortion pretty much ignores the whole purpose of copyright - the growth of culture.

I fully understand the principle that they are trying to preserve the rights of someone who might subsequently claim ownership, but this is further undermined by another section of the proposal:

"Works of unknown copyright status, such as where the work is over 70 years old and the date of death
of the author is unknown, will be within scope of the scheme."

This is just nuts. Copyright is there to inspire creation of new content. If the work is over 70 years old how much new content is the original creator likely to make? The only beneficiary to this part of the scheme is where the rights are owned by a corporation. If the work is over 70 years old and is orphan then it should just revert directly to the public domain.*

They do make some concession with "• To reduce anomalously long copyright for certain unpublished, pseudonymous and anonymous very old works, with the consequence that a number of these works will cease to be in copyright rather than being orphan works." but then provide no detail of which works might fall into this category or what might constitute "very old".

Right, this is turning into a long blog so I'm going to cover the other parts in subsequent posts, once again, if i've misunderstood (or just missed) anything, please correct me in the comments.

* ignoring, of course, the sheer ridiculousness of the life + 70 year copyright rule.

Tuesday, 3 July 2012

If you’re doing the other stuff right your people
should have some pretty interesting jobs. I bet they’ve got interesting
stuff to say. Do they blog? We do. Do they comment in chatrooms? We do.
Let them join the conversation, it should
be part of their job.

The entertainment industry is an aspirational
business. I don’t know how many applicants you get for even the most
minor role but I’ll bet the glamour of either the music of movie
industries pull in a bunch more candidates than the equivalent
roles in engineering or finance.

Journalism and writing are also aspirational jobs.
Pretty much any industry where you’re paid to express yourself (or
facilitate that expression) is going to be an attractive one to a lot of
people.

Basically, in implementing this ruling, each of
their individual twitter feeds became less valuable. In fact, you might
as well cancel the individual feeds and just link to the website.

If we go back to our old techdirt equation of
Connect with Fans + Reason to Buy = $$$, this appears to be a clear case
where the institutional instruction is reducing both of those factors;
by restricting people to only tweeting about their
field it makes it harder to make a connection with readers (fans) and
by forcing everything through the central news desk it slows down the
transmission of information and potentially reduces the value of their
feed (reason to buy).

In a market where the legacy players are fighting
to preserve both their reputations and their relevance the expertise of
their staff remains one of their most powerful weapons. Restricting
access to that expertise (or vice versa) undermines
the business.

The entertainment industries in particular are
suffering something of a crisis of perception as much as anything,
contempt for the inherent imbalance in current copyright law, and the
continued head-in-the-sand behaviour of the lobbying
groups has meant that “the industry” is widely seen as “the bad guy”.
Actually engaging with those disenfranchised fans (rather than suing
them) is going to be necessary to rebuild the industries’ reputations*
and the people on the ground are the ones to do
this – not the CEOs or heads of the lobbying groups. Why? Because of
Stephenson’s sixth law**:

I’ve recently discovered a blog run by a bunch of creators*** (mostly musicians) who appear to be trying to do something
around that connecting with fans and, judging by some of the comments,
they appear to be having some degree of success
in terms of persuading people. Unfortunately they also appear to be
trying to approach the whole debate from a moral standpoint (ignoring
the underlying economics is rarely a good idea) and also by thinking of
things in terms of a zero-sum game – they seem
to be trying to attack pretty much every web-based service as
not-paying-as-well-as-the-old-model rather than paying-better-than-nothing.

Additionally some of their writers have a tendency
to embark on aggressive, expletive-fuelled rants about the people
they’re trying to win over, which doesn’t seem a particularly good
strategy.

But anyway, it’s a good example of trying to free
up your people and helping them connect with their current &
potential future fans – and they’re getting a lot of hits on their
articles.

So whilst I may disagree with a lot of what they
say, it’s a prime example of getting your message across without falling
foul of the sixth law.

* Assuming that the industries update the rest of their business models as well. White-wash won’t work.

** This, of course, has absolutely no data to support it at all.

*** I’m told that there’s a rumour (could I be less
specific?) that this site is in fact supported entirely by a major
music label and is what is known as an “Astro-turfing” site, but I have
seen no evidence on this and it’s largely irrelevant
for the purposes of this instalment.